Mr. Skilling, a former chief executive of Enron, the Houston energy company, was sent to prison in 2006 for his role in its collapse.
His lawyer, Sri Srinivasan, spent about 20 minutes of his half-hour argument on the jury selection question and the “wave of public passion” in Houston that he said made it impossible for his client to receive a fair trial.
The appeals court in the case, while affirming Mr. Skilling’s conviction, had accepted the premise that there was a “pervasive community bias against those who oversaw Enron’s collapse.”
But the appeals court said the trial court judge, Simeon Lake III, had not committed reversible error in failing to grant Mr. Skilling’s motion for a change of venue because Judge Lake’s questioning of prospective jurors was thorough and careful.
Mr. Srinivasan disputed that, and several justices appeared sympathetic to his argument. The lawyer said Judge Lake had spent only five hours on the task, posing cursory questions to jurors and taking them at their word that they would be fair despite evidence to the contrary.
By contrast, Mr. Srinivasan said, questioning in the trial of Timothy McVeigh for his role in the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, which killed 168 people, took 18 days after a motion for change of venue from Oklahoma City to Denver was granted.
Justice Ruth Bader Ginsburg said the two cases were very different. In Mr. Skilling’s case, she said, “what’s involved is money rather than life or limb.”
Mr. Srinivasan said that extended questioning was not unusual in less serious cases, saying it had taken six days to select jurors in Martha Stewart’s trial for lying to federal investigators.
Justice Anthony M. Kennedy indicated that the questioning in Mr. Skilling’s case had been too brief. “It’s hard for me to think,” he said, that the questioning “would have been much shorter even if there had been no showing of pervasive prejudice.”
Michael R. Dreeben, a deputy solicitor general, countered that Judge Lake had 15 years of experience and the benefit of detailed questionnaires completed by potential jurors.
But Justice Stephen G. Breyer said he was troubled by Judge Lake’s failure to dismiss some potential jurors for cause, including one who said she had lost $50,000 or $60,000 in Enron’s collapse. “I am worried about a fair trial in this instance,” Justice Breyer said. (The defense used a peremptory challenge to strike the juror.)
Justice Sonia Sotomayor echoed Justice Breyer’s concern. “How can we be satisfied that there was a fair and impartial jury picked,” she said, “when the judge doesn’t follow up on a witness who says, ‘I’m a victim of this fraud’?”
On the other hand, Justice Breyer said, he was reluctant to have the Supreme Court instruct experienced trial court judges about how to do their jobs.
Mr. Srinivasan’s second argument was that the law under which Mr. Skilling was convicted, which makes it a crime “to deprive another of the intangible right of honest services,” is unconstitutionally vague. The law is a favorite tool of federal prosecutors in both public and private corruption cases.
“Its sweep is breathtaking,” Mr. Srinivasan said of the law. “It would have the capacity to convert almost any workplace lie into a federal felony.”
This argument also got traction from some of the justices. It was helped by a concession from Mr. Dreeben when Justice Ginsburg asked him about the instructions to the jury in Mr. Skilling’s case about what honest services meant.
Mr. Dreeben said the instructions “did take a somewhat broader view of the honest-services crime than the government has taken in this Court.”
After hearing Mr. Dreeben read the instructions, Justice Antonin Scalia asked, “It’s circular, isn’t it?” Mr. Dreeben agreed. “It does seem a little circular to me,” he said.
Justice Samuel A. Alito Jr. asked Mr. Dreeben whether precedents in this area contemplate fraud prosecutions over an employee’s compensation that was publicly disclosed.
“I would frankly acknowledge that this case is a logical extension of the basic principle that we have urged the court to adopt,” Mr. Dreeben said. “The court can evaluate whether it believes that that is legitimately within the scope of an honest services violation or not.”
The Skilling case is the court’s third encounter with the honest-services law this term. Federal prosecutors have used the law to combat public corruption and fraud by corporate officials. The law does not require prosecutors to prove theft of money or property but that defendants have been disloyal to or dishonest with constituents or employers.
One pending case involves a former Alaska legislator, Bruce Weyhrauch, who did not disclose soliciting work from a company with business before the Legislature. Mr. Weyhrauch argued the federal honest-services law should not apply in public corruption cases where no violation of a state law was alleged.
The other pending case concerns Conrad M. Black, the newspaper executive convicted of defrauding his media company, Hollinger International. Mr. Black argued that the law should not apply to him because he had not contemplated that Hollinger would suffer “some identifiable economic injury.”
In his Supreme Court briefs, Mr. Skilling’s lawyer argued that the court should require that prosecutions of employees of private companies be limited to cases in which defendants had obtained some private gain at the expense of their employers. Mr. Skilling’s conduct, one of the briefs said, “even if wrongful in some way, was not the crime of honest-services fraud, because the government conceded that his acts were not intended to advance his own interests instead of Enron’s.”
In answering Justice Alito about whether the government was building on earlier precedents, Mr. Dreeben may have been signaling the government would prefer to lose the Skilling case on narrow grounds than to have the court strike down the law in its entirety as too vague.